Suit to kick Florida justices off ballot dismissed

The Associated Press

Published: Wednesday, August 8, 2012 at 7:51 p.m.

Last Modified: Wednesday, August 8, 2012 at 7:51 p.m.

TALLAHASSEE — A trial judge on Wednesday dismissed a lawsuit aimed at throwing three of his seven bosses Florida Supreme Court justices off the Nov. 6 ballot, where they are seeking retention in an up or down vote.

Democrats and other critics have called the lawsuit a political power grab. Republican Gov. Rick Scott would get to appoint replacements if the justices should be taken off the ballot or defeated at the polls.

Circuit Judge Terry Lewis said a pair of voters who are against retaining the justices had no legal right to sue.

The voters are represented by lawyers from the Atlanta-based conservative Southeast Legal Foundation, who said they would appeal.

The justices, who oversee Florida's court system in addition to issuing appellate rulings, come up for retention votes every six years.

The suit alleged that Justices Peggy Quince, R. Fred Lewis and Barbara Pariente illegally used court employees to advance their campaigns because the staffers helped prepare their election qualifying papers. The justices deny any wrongdoing.

Lewis said the plaintiffs lack standing to sue because there's nothing that sets them apart from other voters.

"I don't think your clients get to speak for everybody," Lewis told Shannon Goessling, the plaintiffs' lead attorney. "They have to show something that's personal to them."

Lewis dismissed the suit with prejudice, meaning it cannot be revised and filed again. Goessling, though, said her clients will ask the 1st District Court of Appeal to reverse Lewis' decision and, if that fails, they'll take it to the state justices or U.S. Supreme Court if necessary.

Goessling argued it was premature to decide the standing issue before considering the merits of the case. She noted the justices narrowly avoided missing the deadline for qualifying for the ballot by recessing a hearing on redistricting to get their papers filed after they were hastily notarized by court staffers.

"It's absolutely relevant that these individuals helped them jump through fiery hoops to get all of these documents completed while members of the public, lawyers and the remainder of the justices and their staff sat waiting. Unconscionable, frankly," Goessling said.

John DeVault, a lawyer for the justices, argued state law gives prosecutors and the Florida Election Commission, not private citizens filing lawsuits, exclusive authority to enforce violations of a law that prohibits candidates from using on-duty public employees to advance their candidacies. DeVault also noted there's no provision in state law for removing violators from the ballot.

Scott asked the Florida Department of Law Enforcement to investigate the allegations. FDLE determined court employees also notarized qualifying papers of the other four justices when they ran for retention in 2010. Investigators also found it's a widespread practice across state government, which is done largely for convenience.

The investigative report was forwarded to Tallahassee-based State Attorney Willie Meggs, who declined to file charges. Meggs dismissed the allegations as a trifle, saying that simply notarizing a signature didn't constitute furthering a political campaign.

Former Florida State University President Talbot Sandy D'Alemberte attended the hearing on behalf of a group called Floridians for Fair and Impartial Justice. D'Alemberte, also a former American Bar Association president, said the lawsuit was a political attack and frivolous.

"It would rank somewhere in the top three or four in that category that I've ever seen in my life," D'Alemberte said.

Another group called Defend Justice from Politics also has criticized the lawsuit. Its members include Stanley Tate, a Republican businessman from North Miami, who called the suit part of an ongoing attempt to seize political control over the courts.

Democratic Gov. Lawton Chiles appointed Lewis and Pariente. Chiles and then-Gov.-elect Jeb Bush, a Republican, jointly appointed Quince shortly before Chiles unexpectedly died in office.

The other four justices were appointed by Gov. Charlie Crist before he dropped his Republican Party membership.

Justices Jorge Labarga and James Perry drew opposition in 2010 over their votes to remove from the ballot a proposed state constitutional amendment designed to thwart mandatory health care insurance in Florida ballot because it had a defective ballot summary. Quince, Pariente and Lewis also voted to remove the proposal.

The Republican-led Legislature has put a new version on the ballot this year and it hasn't been challenged.

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